A Contemporary Overview Of The Right To Succession Under Nigeria Customary Law

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A Contemporary Overview Of The Right To Succession Under Nigeria Customary Law


Right from the beginning there has always been a transition from one generation to another generation and whatever assets or liabilities that were owned or used by one generation is usually passed or transferred to the succeeding generation.

The law of succession is all about the transfer or devolution of property on the death of the owner. It is the manner or form by which property devolves. Though there may not have been any law or statute enacted by a legislature for this purpose, yet each community have had their own beliefs and practices regulating same. Thus, it was held that it is the assent of the natives of a particular community to practices and customs in that community that makes such practices and customs valid. Customary law embodies customs as practiced by the people which they regard as binding on them. Customary succession therefore, is concerned with the way and manner recognized and accepted by the people in which properties are transferred locally according to the customs, traditions and practices of the people.

Chapter Five

Conclusion and Recommendations

5.1 Conclusions

In the course of this essay, it has obviously been revealed that different laws applies to different geographical location within the country on issue of intestacy. This ought not to be so in view of the importance of intestate rules of succession in Nigeria. Most Nigerians usually died intestate because of their lack of interest in writing will. This simply dictates that there should be a more comprehensive and clear intestate rules to be applied to their estates. The need for a straight forward rules on intestacy could be further seen in the fact that the interest and care of the widows or widowers and issues of an intestate ought to be well protected in view of the present day economic realities. In the view of the above, it is suggested that a federal legislation should be made on this topic which effect throughout the country .This will will ensure uniformity in the law governing intestacy and prevent injustices that may occur as a result of dichotomy in the laws applicable to each estate of the federation.

Pertaining to inheritance under native laws and customs in Nigeria, the rules as expected are at variance with statutory rules, and are as varied in accordance with numerous ethnic groups we have in Nigeria. All these rules have been stated in native laws and customs of succession examined in chapter three and four of this essay, but the bottom line of the issue is that most of these rules are outdated and harsh, and sometimes, they are prejudicial against women. Hence there is urgent need to review these rules and make them to conform to modern day’s situations and realities.

For instance, the justice ability of the two modes of distribution under Yoruba custom have been faulted. That is.through the two mode “idi igi” (per stripes) and “ori ojori” (per capita)152 have been held to be legal, but can we agree conscientiously that justice is ensured to the parties concerned by distributing in any of these ways

Under Nigerian customary law of inheritance, the injustice is even more pronounced. Here not only are the wives of an intestate prevented from inheriting their husband estates. The daughters are also not entitled share the estate of their father. They can only be maintained until she get married. The whole issue of inheritance is concentrated on the sons of the intestate who are expected to maintain their mothers and their sisters .But in most cases the widows and daughters are neglected and not maintained by the sons who might have inherited the property leading to suffering. This is nothing compared to the hardship a woman that has no son would go through. In fact according to Professor Nwogugu. a woman who has no son for the husband has no right to remain a member of the family and may be expelled from the husband’s compound and other land by the husband’s heir. This enormous prejudice against women under Igbo custom of inheritance ought to be squarely addressed, there ought to be a modification to the applicable rules so that women would be allowed to inherit their husbands estate or in the alternative. Proper and adequate provisions be made for her to be properly maintained out of the estate. It is viewed that if all these are done giant strides would be attained in succession matters in Nigeria.

5.2 Recommendations

Efforts have been made to discuss in details the problems associated with inheritance rights under customary law in Nigeria especially as it relates to discrimination among the Igbo people of Nigeria. Consequently the following reforms are suggested;

(a) Harmonisation of the principles of natural justice with customary law

The harmonization meant here is like the harmonization of the equitable principles with the common law, so that where there is a lacuna in the customary law application, the principles of natural justice will be applied. Like common law and equity, customary law and principles of natural justices can be harmonized into a single legal system and be applied side by side where necessary, the objective being to supplement the customary law and not to supplant it.

(b) Enactment of New Wills Laws

States that have not enacted Wills Laws should enact such laws to replace the English Wills Acts of 1837 and 1852 that are still applicable in those states. The new Will Laws of the States should emulate the Wills Laws of Lagos, Oyo, Kaduna and Kwara States.153 These laws have curbed the testamentary freedom of a testator by making provision for courts to make financial provisions for spouses, children and other dependants of a testator who has failed to provide for such persons in his Will.

(c) Unification and codification of customary laws

The unification of customary laws in the country will bring about a possible solution to the problem of lack of unity among the various customary laws and practices in Nigeria. It means the assimilation of the customary laws of all major tribes in Nigeria so as to have one unified law. Codification of the customary law will bring about certainty and sanctity of the law. This is because a society where an individual knows the applicable law, his rights and obligations and punishment for the breach of the law, will certainty command obedience and respect of the law.

(d)Enlightenment programs

Most people are ignorant of the rights afforded them under the statutes and if such laws are to have their desired impact, then it will be expedient to launch extensive e educational as well as legal aid programs. Legal literacy is an invaluable tool for the empowerment of women because it provides essential information that allows women to exercise their right through channels of legal assistance and action. The Beijing Declaration and platform for action of the fourth United Nations World Conference on women stated that:

“While women are increasingly using the legal system to exercise their rights, in many countries, rights is an obstacle that prevents women from fully enjoying their human rights and attaining equality “.

Governmental organizations as well as civil society have always acted as indispensable agents in the protection and promotion of the rights of the vulnerable in the society and continue to do so. Their continued and intensified efforts to promote women’s inheritance rights through legal literacy programs would help to reduce the discriminations which women experience.

(e) Free Legal Aid for Matters Relating to the Rights of Inheritance

Free legal aid services should be provided by the Legal Aid Council for poor women to seek redress in courts in cases of the violation of their rights of inheritance. It is pertinent to state that the Legal Aid Council Act presently empowers the Legal Aid Council to render free legal assistance in respect of civil claims to cover breach of fundamental human rights as guaranteed under Chapter IV of the Constitution. However, we suggest that the Federal Ministry of Women Affairs should initiate a bill to the National Assembly to amend the Legal Aid Council Act to specifically provide for civil matters relating to violation of women’s right of inheritance. In the alternative, Nigeria should emulate some African Countries like Uganda and South Africa. These countries have enlarged the fundamental rights provisions in their Constitutions to give any person, organisation or association the right to apply to courts for the enforcement of the rights of the underprivileged, the poor or literates whose fundamental human rights are being violated or have been violated. The proposed amendment to the Constitution should give individuals and nongovernmental organisations the right to institute legal action against any person, group of persons or organisations who violate inheritance rights of women. This will make women to have better access to legal representation when their rights of inheritance are violated or about to be violated.

It is important to mention that section 15 (2) of Ugandan Constitution specifically prohibits laws, cultures, customs and traditions which are against the dignity or interests of women. Our National Assembly should amend our Constitution to include such a provision. This will ensure the abolition of all customary laws that are discriminatory against women as regards the right of inheritance.

(f) Establishment of Sharia Courts in the States of Southern Nigeria

The governments of the States in Southern Nigeria where Muslims are predominant should enact laws to establish Sharia courts of co-ordinate jurisdiction with customary courts existing presently in those States with jurisdiction over Islamic personal law on matrimonial and succession matters as provided by the Constitution. Alternatively, the governments of the States where Muslims are not many could create a department of Sharia within the existing customary courts system to deal with Islamic personal law matters.

Persons with basic qualifications for appointment as Qadis (Islamic Judges) should be appointed for Sharia Courts of subordinate jurisdictions with customary courts. As regards the department of Sharia, persons knowledgeable about Islamic Law should be appointed as judicial personnel to manage the department. The jurisdiction of Shariah courts of subordinate jurisdiction with customary courts or the responsibility of the Sharia department should include services as

regards the distribution of the estates of Muslims according to Islamic law. The distribution of the estates of the Muslims according to Islamic law of inheritance will no doubt enable Muslim women in those States to enjoy the right of inheritance accorded them under Islamic law.

(g) Economic empowerment of women

Besides legal approach this study recommends that women should be empowered economically so that they can have resources that will make them less dependant on men. In view of the fact that majority of women in both urban and rural areas engage in small businesses, petty trading and processing of agricultural produce, they should be educated and encouraged by women’s associations and non-government agencies working for women to organise themselves into small cooperative groups.

Cooperatives groups should be assisted with soft loans by local and state governments as part of their poverty alleviation programmes. The soft loans can help the businesses of the women to grow gradually and thereby increase their resources over the years. The poverty alleviation programmes of governments should also include skill acquisition training for women in urban and rural areas that will make women self-reliant economically. In addition, while alive, men should endeavor to set up small businesses for their wives to enable them have resources of their own. Women should be allowed and encouraged by their husbands to control their resources for effective economic empowerment. The control of their financial resources by women over the years will enable them not only to fight for their rights of inheritance under the laws but also make them less dependent on inheritance from their deceased husbands and fathers. They will then be able to take care of themselves and their children on the demise of their relations.

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